Morris v. Shulkin

Plaintiff
Albert Morris ("Plaintiff"), a black male who is
proceeding pro se, is suing his former employer, the
Department of Veterans Affairs, under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e
efc seg., and the Equal Pay Act of 1963, as amended, 29
U.S.C. § 206(d) et seq. The case is presently
before the Court on Defendant's motion for summary
judgment as to all claims. Upon consideration of the record
evidence, the relevant law, and the parties' briefs, the
motion for summary judgment is GRANTED.

Plaintiff
is a black male born April 18, 1951. In May 2009 Plaintiff
was offered a position as Staff Radiologist at the Carl
Vinson VA Medical Center in Dublin, Georgia. Newly hired
physicians must apply to the hospital "Professional
Standers [sic] Board for Credentialing and Privileging"
for an appointment of clinical privileges. See
(Def.'s Mot. for Summ. J., Doc. No. 24, Ex. 4.)
Privileges are generally awarded for two years. Plaintiff
applied for privileges as a full-time radiologist and was
approved through May 2011.

When
Plaintiff began his employment, Dr. Kush Kumar was his
immediate supervisor. In January 2010, Plaintiff reported Dr.
Kumar for patient abandonment. According to Plaintiff, this
is where his employment problems began.

About
this same time, Dr. Kumar informed Plaintiff that he wanted
him to read MRIs as part of his job responsibilities.
(PL's Dep. of Mar. 14, 2017, Doc. No. 24-2, at 38.)
According to Plaintiff, MRIs had never been interpreted at
the facility, and MRIs were not listed on the list of
modalities when he applied for the position. (Id.)
In fact, Plaintiff had not read MRIs in three or four years
prior to his employment at the VA. (Id.) Moreover,
Plaintiff believed he should be compensated more for reading
MRIs since that modality was not listed in the job
announcement. (PL's Dep. of Feb. 9, 2015, Doc. No. 24-3,
at 46-48.)

On
April 5, 2010, Plaintiff received a letter placing him on
paid non-duty status "pending a decision on whether a
Summary Review is appropriate." (Def.'s Mot. for
Summ. J., Ex. 8.) On July 30, 2010, Plaintiff's
privileges were summarily suspended upon the recommendation
of the Chief of Staff, Dr. Nomie Finn, who had reason to be
concerned that "aspects of [Plaintiff's] clinical
competency do not meet the accepted standards of practice and
potentially constitute an imminent threat to patient
welfare." (Id., Ex. 9.) The letter further
provided: "An administrative review of your imaging
examinations found a significant number of major
disagreements in relation to spinal MRIs and
CTs.[2]
This suspension is in effect pending a comprehensive review
of your imaging examinations." (Id.) Plaintiff
does not dispute receiving the letter or the fact of
suspension, nor the fact that the committee made the stated
findings; rather, he claims the committee was not independent
and the process was flawed and not in accordance with written
policy recommendations. (See generally PL's
Resp. to Def.'s St. of Material Fact, Doc. No. 33,
¶¶ 21-22.) According to Plaintiff, he received the
July 30, 2010 letter one week after Dr. Kumar was informed of
the complaint about patient abandonment.[3] (Id.
¶ 21.)

For
reasons unknown, Plaintiff remained on paid administrative
leave for one year, until August 2011. When Plaintiff
returned, the VA had hired two Staff Radiologists: Drs.
Edward Silverman and Aida Karahmet. Dr. Silverman had been
assigned to Plaintiff's former office. Indeed, at the
time of his return, there were no vacant offices in the
Radiology Department (Building Four on the VA campus); so,
Plaintiff was placed in Building Six pending construction of
his new office in Building Four. While the VA claims that
Plaintiff's workspace in Building Six was similar to all
other radiologists, Plaintiff complains that his office did
not have room darkening capabilities, only had 2 bank x-ray
displays rather than 4, and was not within range of
departmental paging and other forms of communication within
the radiology department. (PL's Resp. to Def.'s St.
of Material Fact, Doc. No. 33, ¶ 33.) Plaintiff further
complains that other arrangements could have been made to
accommodate his office in Building Four, such as moving the
part-time radiologist or the chief technologist, both of whom
were female. As soon as his office was fully constructed and
suited with furniture and equipment, Plaintiff was moved back
to Building Four in roughly July 2012.

Also
upon Plaintiff's return in August 2011, he was placed
under the supervision of Associate Chief of Staff, Dr. Raman
Damenini. On October 28, 2011, Dr. Finn informed Plaintiff
that he must undergo a Focused Professional Practice
Evaluation ("FPPE"). The FPPE process assures a
physician is competent so that clinical privileges can be
maintained and quality of care for patients can be
assured.[4] The FPPE was implemented because the
medical staff was concerned by past discrepancies in
Plaintiff's case readings and because too much time had
elapsed since Plaintiff practiced "at an acceptable
productivity level." Plaintiff was told that the process
is completed on any provider who had recently been granted
clinical privileges and that his clinical privileges depended
upon the FPPE outcome. Plaintiff's privileges were
granted for six months, from November 4, 2011 to May 3,
2012.[5]

On
February 28, 2012, Plaintiff successfully completed the FPPE
upon demonstrating an acceptable level of professional
competence. The Medical Evaluation Committee, however,
recommended an Ongoing Professional Practice Evaluation
("OPPE") for Plaintiff. The OPPE is performed twice
a year and is less stringent than the FPPE. The OPPE is a
requirement for all physicians to confirm the quality of care
delivered.

On May
3, 2012, Plaintiff's clinical privileges were extended
for only a ninety-day period, until July 31, 2012. The VA
explains that Plaintiff did not have enough peer reviews on
file to re-credential him.[6] Accordingly, the VA sent out 15 of
Plaintiff's interpretations to three different facilities
for peer review. (Def.'s Mot. for Summ. J., Ex. 32, at
8-9 (M[A]ny employee who is being recredentialed
has to submit additional information, just like you're
starting all over. And so that means that he has to have peer
reviews that are up-to-date, current, and he has to have a
certain number before we can declare him
recredentialed.").) The ninety-day period was granted to
allow time for the peer reviews to come back to the VA.
(Id. at 10.)

On May
24, 2012, Plaintiff received notification of disagreements
with readings of his ultrasound and CT scans through the OPPE
process. The VA suspended Plaintiff's clinical privileges
for reading ultrasound and CT scans. Plaintiff was allowed to
read only plain film while his ultrasounds and CT scans
underwent a comprehensive peer review. On July 6, 2012, all
of Plaintiff's privileges were suspended due to concerns
about his professional competence.

On
August 8, 2012, Plaintiff re-applied for clinical privileges.
Only plain film privileges were granted pending the outcome
of retraining and evaluation. The VA arranged for Plaintiff
to receive individualized, two-week training at the VA in
Charleston, South Carolina. Both parties pick and choose
favorable statements from the training physician's final
report, but his conclusion is unmistakable:
"[Plaintiff's] skill as a radiologist functioning
independently is questionable and further review is needed,
at a minimum. My general impression is that [Plaintiff] would
not meet the standards to work independently in my
department." (Def.'s Mot. for Summ. J., Ex. 40, at
1-2.)

On
October 31, 2012, Plaintiff's supervisor, now Dr. Ami
Girgis, instructed him to apply for a full range of
privileges in line with the job description of a VA Staff
Radiologist. On November 2, 2012, Plaintiff returned his
application package requesting only plain film radiograph and
fluoroscopy privileges. Plaintiff claims he was concerned
about the effect of applying for privileges that would be
denied because of the negative effect denials would have on
his professional record. (PL's Dep. of Mar. 14, 2017, at
66.) On November 7, 2012, Plaintiff was again instructed to
apply for a full range of privileges and warned that his
privileges would expire on November 8, 2012. Plaintiff did
not timely comply and his privileges expired. On November 9,
2012, the VA informed Plaintiff that he was no longer a
member of the medical staff with clinical
privileges.[7] On December 6, 2012, the VA placed
Plaintiff on non-duty status.

Some
time later, on November 13, 2013, the VA sent Plaintiff a
proposed discharge letter, outlining 24 cases in which
Plaintiff demonstrated inadequate clinical competence through
incorrect interpretations and/or recommendations. On August
29, 2014, Plaintiff received a discharge letter, effective
September 6, 2014. The letter stated that Plaintiff was
discharged from federal employment because of a demonstration
of inadequate clinical competence.

In his
deposition, Plaintiff claims that he was subjected to a sham
peer review and that the VA, through its Chief of Staff Dr.
Nomie Finn, attempted to destroy his career and professional
reputation. (PL's Dep. of Mar. 14, 2017, at 64-70.) He
claims that Dr. Finn is "extremely vindictive" and
"emotionally unstable." (Id. at 67.)

B.
Procedural Background

Plaintiff
filed his first EEO claim on August 20, 2010, disputing his
placement on administrative leave from April 5, 2010 to
August 1, 2011. He alleged discrimination based on his race,
sex and age. However, because Plaintiff had been paid during
his 16-month administrative leave, the EEO counselor
determined no harm had been caused. Plaintiff did not file a
formal EEO complaint at that time.

On May
31, 2012 and January 24, 2013, Plaintiff contacted an EEO
counselor again and alleged discrimination based on race, sex
and age as well as reprisal for prior EEO activity. Plaintiff
filed a formal complaint with the Equal Employment
Opportunity Commission on July 20, 2012. The claims accepted
for investigation and adjudication were whether Plaintiff was
discriminated against as evidenced by the following events:

• The placement in Building Six upon his return to work
in August 2011

• Disparity in pay with other radiologists

• Limited approval of clinical privileges (i.e. three
months) from May 7, 2012 to July 31, 2012

• Placement on non-duty status on December 6, 2012

(See generally Compl., Case No. 3:16-CV-046, ¶
9.) On March 1, 2016, the Administrative Judge issued a
decision in favor of the VA on all claims. (Id.
¶ 10.)

On
October 20, 2014, after the effective date of Plaintiff's
termination, Plaintiff initiated an informal EEO complaint.
On January 26, 2015, Plaintiff filed a formal charge of
discrimination with the EEOC. The claims accepted for
investigation and adjudication were whether Plaintiff was
subjected to a hostile work environment as evidenced by the
following events:

• Plaintiff's proposed removal in the memorandum of
November 13, 2013

• The nine-month period, from November 13, 2013 to
August 29, 2014, for the VA to render a decision regarding
Plaintiff's proposed removal

• The VA's refusal to allow Plaintiff to
sufficiently review or respond to the charges in the proposed
...

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